By the king's companion is meant his wife; and by violation is understood carnal knowledge, as well without force, as with it: and this is high treason in both parties, if both be consenting; as some of the wives of Henry the Eighth by fatal experience evinced. The plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious and therefore, when this reason ceases, the law ceases with it; for to violate a queen or princess dowager is held to be no treason: in like manner as, by the feodal law, it was a felony, and attended with a forfeiture of the fief, if the vassal vitiated the wife or daughter of his lord; but not so, if he only vitiated his widow.

:

may

the king in his realm.

[82]

3. THE third species of treason is, "if a man do levy war Levying war against "( against our lord the king in his realm." And this be done by taking arms, not only to dethrone the king, but under pretence to reform religion, or the laws, or to remove evil counsellors, or other grievances whether real or pretended. For the law does not, neither can it, permit any private man, or set of men, to interfere forcibly in matters of such high importance; especially as it has established a sufficient power, for these purposes, in the high court of parliament: neither does the constitution justify any private or particular resistance for private or particular grievances: though in cases of national oppression the nation has very justifiably risen as one man, to vindicate the original contract subsisting between the king and his people. To resist the king's forces by defending a castle against them, is a levying of war; and so is an insurrection with an avowed design to pull down all inclosures, all brothels, and the like; the universality of the design making it a rebellion against the state, an usurpation of the powers of government, and an insolent invasion of the king's authority. But a tumult with a view to pull down a particular house, or lay open a particular inclosure, amounts at most to a riot; this being no general defiance of public government.

(c) 3 Inst. 9. P. C. 37.

(d) Feud. l. 1. t. 5. (g) 1 Hal. P. C. 132.

(e) Ibid. t. 21.

(f)1 Hawk.

Being adherent to, or aiding, &c. the king's enemies.

[83]

government. So, if two subjects quarrel and levy war against each other, (in that spirit of private war, which prevailed all over Europe in the early feodal times) it is only a great riot and contempt, and no treason. Thus it happened between the earls of Hereford and Glocester in 20 Edw. 1. who raised each a little army, and committed outrages upon each other's lands, burning houses, attended with the loss of many lives: yet this was held to be no high treason, but only a great misdemesnor j. A bare conspiracy to levy war does not amount to this species of treason (25); but (if particularly pointed at the person of the king or his government) it falls within the first, of compassing or imagining the king's

death 1.

4. "IF a man be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or "elsewhere," he is also declared guilty of high treason. This must likewise be proved by some overt act, as by giving them intelligence (26), by sending them provisions, by selling them arms, by treacherously surrendering a fortress, or the like *. By enemies are here understood the subjects of foreign powers with whom we are at open war. As to foreign pirates or robbers, who may happen to invade our coasts, without any open hostilities between their nation and our own, and without any commission from any prince or state at enmity with the crown of Great Britain, the giving them any, assistance is also clearly treason; either in the light of adhering to the public enemies of the king and kingdom', or

else in that of levying war against his majesty. And, most indisputably, the same acts of adherence or aid, which (when applied to foreign enemies) will constitute treason under this branch of the statute, will (when afforded to our own fellowsubjects in actual rebellion at home) amount to high treason under the description of levying war against the king". But to relieve a rebel, fled out of the kingdom, is no treason: for the statute is taken strictly, and a rebel is not an enemy; an enemy being always the subject of some foreign prince, and one who owes no allegiance to the crown of England". And if a person be under circumstances of actual force and constraint, through a well-grounded apprehension of injury to his life or person, this fear or compulsion will excuse his even joining with either rebels or enemies in the kingdom, provided he leaves them whenever he hath a safe opportunity°.

5. "Ir a man counterfeit the king's great or privy seal," Counterfeiting the great or privy seal. this is also high treason (27). But if a man takes wax bearing the impressing of the great seal off from one patent, and fixes it to another, this is held to be only an abuse of the seal, and not a connterfeiting of it; as was the case of a certain chaplain, who in such manner framed a dispensation for non-residence (28). But the knavish artifice of a lawyer much exceeded this of the divine. One of the clerks in chancery glewed together two pieces of parchment; on the uppermost of which he wrote a patent, to which he regularly obtained the great seal, the label going through both the skins. He

Counterfeiting, or importing counterfeits of, the king's money.

then dissolved the cement; and taking off the written patent, on the blank skin wrote a fresh patent, of a different import from the former, and published it as true. This was held no counterfeiting of the great seal, but only a great misprision; and sir Edward Coke mentions it with some indignation, that the party was living at that day.

6. THE sixth species of treason under this statute, is “if ❝ a man counterfeit the king's money; and if a man bring false "money into the realm counterfeit to the money of England, "knowing the money to be false, to merchandize and make

payment withal." As to the first branch, counterfeiting the king's money; this is treason, whether the false money be uttered in payment or not. Also if the king's own minters alter the standard or alloy established by law (29), it is treason. But gold and silver money only are held to be within this statute (30). With regard likewise to the second branch, importing foreign counterfeit money, in order to utter it here; it is held that uttering it, without importing it, is not within the statute (S1). But of this we shall presently say

9

more.

Killing the chancellor, treasurer, or justices, in their places.

7. THE last species of treason ascertained by this statute, is "if a man slay the chancellor, treasurer, or the king's "justices of the one bench or the other, justices in eyre, or justices of assise, and all other justices assigned to hear and "determine,

"determine, being in their places doing their offices." These high magistrates, as they represent the king's majesty during the execution of their offices, are therefore for the time equally regarded by the law. But this statute extends only to the actual killing of them, and not to wounding, or a bare attempt to kill them. It extends also only to the officers therein specified; and therefore the barons of the exchequer, as such, are not within the protection of this act : but the lord keeper or commisioners of the great seal now seem to be within it, by virtue of the statutes 5 Eliz. c. 18. and 1 W. & M. c. 21.

THUS careful was the legislature, in the reign of Edward the third, to specify and reduce to a certainty the vague notions of treason, that had formerly prevailed in our courts. But the act does not stop here, but goes on. "Because "other like cases of treason may happen in time to come, "which cannot be thought of nor declared at present, it is "accorded, that if any other case supposed to be treason, "which is not above specified, doth happen before any "judge; the judge shall tarry without going to judgment of "the treason, till the cause be shewed and declared before "the king and his parliament, whether it ought to be judg"ed treason, or other felony." Sir Matthew Hale' is very high in his encomiums on the great wisdom and care of the parliament, in thus keeping judges within the proper bounds and limits of this act, by not suffering them to run out (upon their own opinions) into constructive treasons, though in cases that seem to them to have a like parity of reason; but reserving them to the decision of parliament. This is a great security to the public, the judges, and even this sacred act itself; and leaves a weighty memento to judges to be careful, and not overhasty in letting in treasons by construction or interpretation, especially in new cases that have not been resolved and settled. 2. He observes, that as the authoritative decision of these casus omissi is reserved to the king and parliament, the most regular way to do it is by a new declarative

[85] (All other species of

treasons must be

determined by par liament.)